People v. Shannon

• Decision Date: 13 May 1975
• Docket Number: No. 59245,59245
• Citation: 329 N.E.2d 399,28 Ill.App.3d 873
• Parties: PEOPLE of the State of Illinois, Respondent-Appellee, v. Leroy SHANNON and Melvin Garrett, Petitioners-Appellants.
• Court: United States Appellate Court of Illinois

Page 399

329 N.E.2d 399

28 Ill.App.3d 873

PEOPLE of the State of Illinois, Respondent-Appellee, v. Leroy SHANNON and Melvin Garrett, Petitioners-Appellants.

No. 59245.

Appellate Court of Illinois, First District, Second Division.

May 13, 1975.

Paul Bradley, First Deputy, Chicago, for petitioners-appellants; Martin Carlson, Asst. Defender, Chicago, of counsel.

Bernard Carey, State's Atty., Cook County, Chicago, for respondent-appellee; James Veldman, Jerald A. Kessler, Asst. State's Attys., of counsel.

HAYES, Justice.

Petitioners, Leroy Shannon and Melvin Garrett, appeal from the denial, without an evidentiary hearing, of their amended petition filed pursuant to the terms of the Illinois Post-Conviction Hearing Act. Ill.Rev.Stat.1971, ch. 38, par. 122--1 et seq. The amended petition alleged that their burglary convictions, affirmed by this court in People v. Morris (1972), 7 Ill.App.3d 1055, 289 N.E.2d 73, had been obtained by the State's use of perjured testimony at their original bench trial. In the instant appeal, they contend that this allegation, supported by the affidavit of one Kenneth Dompier (attached to the petition), not only raised an issue of constitutional dimension, but also entitled them to an evidentiary hearing. The State contends that the amended petition contained mere conclusional allegations and made no substantial showing of a violation of constitutional rights.

The amended petition alleged that petitioners were deprived of constitutional rights in that State used the perjured testimony of the part-owner of the building, Arthur C. Horman, at their original trial. The essence of their trial defense was their claim that, although they had entered the building without consent of the owner, they had entered through an open front loading dock door and their sole intention had been to finish drinking a bottle of wine. At trial, petitioner Shannon testified to this defense. The part-owner of the building had testified that the door could not have been open without alerting the American District Telegraph alarm service which covered the building, because any opening of the door would have triggered the alarm and would have brought alarm service personnel promptly to the scene. But, according to the affidavit of Kenneth Dompier, Horman knew that the power cable which brought electricity to the building, including that for the operation of the alarm service, had been severed prior to the date of the alleged offense. Horman, it was alleged, had also testified falsely that, on an inspection which he had made prior to the offense, the building had been normal and undamaged, when in fact he had known that the power cable had been severed. This testimony of Horman, which the amended petition alleged was perjured, had substantially impaired petitioners' defense because it had prejudicially impeached the credibility of petitioner Shannon, who had presented the crucial testimony as to petitioners' intent. Petitioners also claimed they had been denied the right to confront witnesses when Horman, although not sworn, had been allowed to 'testify' at the preliminary hearing that the door could not have been open without triggering the ADT alarm. Petitioners also alleged that they believed that perjured testimony may also have been given at the grand jury hearing, and they attacked to their amended petition a motion for discovery of the grand jury minutes, marked 'Denied'.

The affidavit of Kenneth Dompier stated that he was an employee of the building located at 2537 S. Wabash Avenue in Chicago and that 'a few days' before 8 July 1970 (the date of the burglary), during an inspection, he had discovered 'that the main power cables running into the building had been severed'; that the building was wired with an alarm system which included the doors for the loading dock; that, as a result of the severance of the cables, the alarm system would not function; and that during the inspection he had shown Mr. Horman that the wiring had been severed.

The testimony at the trial in early January of 1971 consisted of the testimony of four police officers, Horman, and defendant Shannon. Horman had first testified at a preliminary hearing on 9 July 1970 that he was a part-owner of the building, a three-story, limestone-front building with a brick back; that the building was not occupied on 8 July 1970; and that he had given no one permission to enter. He had inspected the building after he had been notified of the incident. He said that the damage consisted of copper cable torn off the wall, along with boxes and lighting fixtures. Asked if he had had a guard there, he answered, 'A.D.T. covers the building', and that this was 'the alarm'. He testified that on 8 July 1970, the locks were still in good condition, as was the building except for a broken window in the back. On 14 July 1970 (the preliminary hearing having been continued), a person identified in the transcript as 'a voice', evidently Horman, answered a question from the court about how much was invested in the building by answering, '$265,000' and stated: 'The front door was covered by A.D.T. It couldn't have been opened.' In context, presumably the witness meant that it couldn't have been opened without triggering the alarm.

At the trial on 7 January 1971, Horman testified he had 'A.D.T. protecting' the building and had paid for this protection. He had last been at the building on 5 July 1970, with his former engineer, Kenneth Dompier, and a fireman, Tilman Murff. ¹ When he was inside the building, the interior 'seemed to be perfectly normal'. When he left the building on 5 July, the doors were locked. When he examined the building on the morning of 8 July 1970 the electric wiring had been pulled out, and the electrical boxes and the generators had been pulled apart. Windows in the back of the building were broken, and the damage was between $25,000 and $30,000. The building was sold for $68,500. There were five doors operated by electric motors and two doors operated by keys, and it was not possible forcibly to enter the former. He had keys to the locks and the A.D.T. alarm people had keys. He first got word of the incident from A.D.T. personnel about 6:45 in the morning of 8 July, and, at their suggestion, went to the police station. The windows in the back were broken from the outside; more than three were broken. He saw copper fixtures piled near the doors on July 8.

Treated in logical order, the State makes the threshold contention that the issue of the relative credibility of Horman and of petitioner Shannon was necessarily involved in the petitioners' direct appeal and is therefore Res judicata. But the issue raised by petitioners' amended post-conviction petition is an entirely different issue, namely, that a part of Horman's testimony was perjured and that the prejured part related directly to the credibility of Shannon in respect of his defense testimony as to the essential element of petitioners' intent in entering the building. Moreover, the perjured character of that part of Horman's testimony was based on matters outside the record (namely, the facts alleged in Dompier's affidavit), so that the issue raised by the post-conviction petition could not have been raised on the direct appeal. The State does not dispute the fact that Dompier's testimony was discovered by petitioners only after the trial and does not contend that the testimony reasonably could or should have been discovered before trial. We conclude, therefore, that the issue raised by the allegations of the post-conviction petition was not rendered Res judicata by the direct appeal.

The second issue between the parties arose as follows: As one ground for its motion to dismiss the post-conviction petition without an evidentiary hearing, the State alleged that the allegations of the petition failed to raise an issue of constitutional dimension. In argument on the motion, the State supported this contention on the ground that the petition failed to allege that the State had Knowingly used the alleged perjured testimony; the allegation was merely that the State had used it in obtaining the burglary convictions. In the absence of an allegation of knowing use, the issue raised was not one of constitutional dimension because mere unknowing use cannot be said to constitute State action within the meaning of the due process clause. In the further course of the argument on the State's motion to dismiss, petitioners conceded that the great weight of case authority, both State and Federal, supported the State's contention, but suggested that there was a minority view and that the issue had never been decided in Illinois. On this appeal, the State's brief does not advert to this particular issue, but petitioners' brief does; and, in support of their contention that the State's use, whether knowing or unknowing, of perjured testimony in obtaining the burglary convictions raises an issue of constitutional dimension under the due process clause concept of fundamental fairness, petitioners cite People v. Sims (1972), 4 Ill.App.3d 878, 880, 282 N.E.2d 16.

In Sims, in remanding a post-conviction petition for an evidentiary hearing, the court said that: 'an allegation of a conviction founded upon perjured testimony, whether knowingly used or inadvertently used, is of constitutional dimension'. In that respect, the court cited as appropriate the following language in Jones v. Kentucky (6 Cir., 1938), 97 F.2d 335, 338:

"(T)he fundamental conceptions of justice which lie at the base of our civil and political institutions' must with equal abhorrence condemn as a travesty a conviction upon perjured testimony if later, but fortunately not too late, its falseness is discovered . . .. (T)he state in the one case as in the other is required to afford a corrective judicial process to remedy the alleged wrong, if constitutional rights are not to be impaired.' ²

It is clear that, in Illinois as...